2025 Y L R 1170
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
NAJEEB ULLAH and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. 202 of 2024, decided on 29th October, 2024.
(a) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of
Narcotic Substances (Amendment) Act (XX of 2022)] ---
----S. 9(1)3(e) ---Possession of narcotic substances ---Appreciation of evidence---
Contradictions in the statements of witnesses ---Scope ---Prosecution case was that 10 -
kilograms charas was recovered from the vehicle of appellants ---Complainant neither in
his murasila nor in his statement before the Court stated that after the recovery to whom he had handed over the recovered contraband ---Complainant did not state that when did
Investigating Officer come at the place of occurrence ---Complainant did not state that
how and in what manner the narcotics were recovered from the switchboard nor did he mention that how the contraband was weighed ---Complainant did not testify and reveal
regarding shape and kind of narcotics ---Statement of the complainant was absolutely
silent regarding extracting of samples ---Testimony of recovery witness was not in line
with the deposition of complainant ---Recovery witness testified that ten packets of charas
were recovered from secret cavities of AC fitted in the switchboard, but complainant did not mention so--- Said witness stated that the colour of the recovered car was blue,
whereas complainant in his murasila and FIR had mentioned the colour of said car as golden ---Statements of both the witnesses had been found to be contradictory, creating
doubt in the recovery---Appeal against conviction was allowed, in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act (XX of 2022)]---
----S. 9(1)3(e) ---Possession of narcotic substances ---Appreciation of evidence ---Safe
custody and transmission of the narcotics for analysis not proved--- Prosecution case was
that 10- kilograms charas was recovered from the vehicle of appellants ---Incharge
Malkhana testified that on 07.11.2023, Investigating Officer handed over to him 12 parcels, whereof he made entry in Register No. 19 and thereafter handed over 10 parcels to Police Constable for onward transmission to the Forensic Science Laboratory for chemical analysis ---Incharge Malkhana did not mention about the date and time when he handed
over the said parcels to Police Constable for onward transmission to Forensic Science Laboratory---Investigating Officer stated that 12 parcels were handed over to Police Constable for onward transmission to Forensic Science Laboratory, contradicting Malkhana incharge, Police Constable and Forensic Science Laboratory Report, wherein it was clearly mentioned that 10 parcels were deposited in the office of Forensic Science Laboratory ---
Record reflected that the recovery was effected on 07.11.2023, but the office of Forensic Science Laboratory received the parcels on 10.11.2023, whereof no plausible explanation had been offered by any of the prosecution witnesses, which made process of safe custody and transmission of the narcotics from the place of recovery to the Malkhana and then its onward transmission to Forensic Science Laboratory doubtful ---Appeal against conviction
was allowed, in circumstances.
The State v. Imam Bakhsh 2018 SCMR 2039 and Kamran Shah v. The State 2019
SCMR 1217 rel.
(c) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act (XX of 2022)]---
----S. 9(1)3(e) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.
6---Recovery of narcotic substance ---Appreciation of evidence --- Chemical examination --
-Contravention of international testing standards and directions of the Supreme Court ---
Effect ---Prosecution case was that 10 -kilograms charas was recovered from the vehicle of
appellants ---Report of Chemical Examiner Forensic Science Laboratory revealed that two
tests were performed by the Forensic Science Laboratory, i.e., Fast Blue B Salt Test and
Thin Layer Chromatograph ("TLC") Test ---Forensic Science Laboratory had albeit
rightly considered the Fast Blue B Salt Test as presumptive test, but had wrongly
construed the TLC as a confirmative test, which was in contravention of UNODC guidelines and recommendations ---Supreme Court had strictly directed the Federal
Government and the respective Provincial Governments to ensure that the Government Analysts in the Narcotics Testing Laboratories were qualified as per R.3 of the Rules of 2001, who shall follow the protocols of tests as per international guidelines and in case of failure, disciplinary action be taken against the said officials ---Admittedly, not only Fast
Blue B Salt was a presumptive test, but the TLC was also presumptive test, but Forensic
Science Laboratory had wrongly considered it as a confirmatory test, which was in utter
violation of the UNODC Manual and the dicta laid down by the Supreme Court, thus no
conviction could be recorded, while relying upon such Forensic Science Laboratory Report --
-Appeal against conviction was allowed, in circumstances.
Khairul Bashar v. State 2019 SCMR 930 and Qaiser Javed Khan v. The State PLD
2020 SC 57 rel.
(d) Criminal trial ---
----Benefit of doubt ---Principle ---Single or slightest doubt, if found reasonable would be
sufficient to entitle the accused of its benefit, not as a matter of grace and concession, but as a matter of right.
Ahmed Ali v. The State 2023 SCMR 781 rel.
Attaullah Langove for Appellant.
Muhammad Younas Mengal, Additional Prosecutor General ("APG") for the State.
Date of hearing: 2nd October, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Appellants have called in question the veracity
and legality of judgment dated 21.05.2024 ("impugned judgment") passed by learned Additional Sessions Judge, Khuzdar -Special Judge CNS ("Trial Court"), arising out of FIR
No.68 of 2023 (Ex.P/6- A) registered with Levies Station Baghbana District, Khuzdar,
whereby the appellants have been convicted and sentenced under section 9(1) 3(e) of Control of Narcotic Substances (Amendment Act 2022) of 1997 ("Act of 1997") to suffer R.I for twenty (20) years with a fine of Rs.800,000/ - (Eight hundred thousand) with the premium of
Section 382 -B of the Criminal Procedure Code, 1898 ("Cr.P.C").
2. Compendiously, facts of the case are that complainant Abdul Qadir Risaldaar Levies
("RL") (PW -1) got lodged the crime report ibid on the basis murasila (Ex.P/1- A), averring
therein that on 07.11.2023 at about 4:30 pm, a 2D car bearing Registration No. AAN -223
coming from Quetta towards Karachi was stopped and checked driven by Najeebullah (appellant No.1), whereas Shah Mureed (appellant No.2) was sitting beside the driver, wherein ten (10) packets of 'charas', weighing 10 kgs concealed in the cavities made in the switchboard of the said vehicle were recovered.
After necessary investigation, the appellants were put on trial, where on
commencement of trial, the prosecution in order to bring home the charge produced six (06) witnesses. The appellants were examined under section 342 of CrPC, who denied the allegations and professed innocence. They neither opted to record their statements on oath nor produced defence, thus the Trial Court convicted and sentenced the appellants vide judgment impugned herein in the terms mentioned in para supra.
3. Learned counsel for the appellant inter alia contended that the impugned judgment is
liable to be set at naught as the same is result of misreading of evidence. Added further that
the safe custody and transmission of the narcotics has also not been established and that there are multiple contradictions in the statements of prosecution witnesses, but the Trial Court has failed to appreciate the evidence in its true perspective and has drawn its conclusion contrary
to the record, which has made the impugned judgment a nullity in the eyes of law, thus,
prayed to allow the appeal and acquit the appellants of the indictment.
Conversely, learned APG vigorously resisted the arguments advanced by counsel for
the appellant and urged that the Trial Court has well appreciated the evidence, which does
not call for interference. He augmented his arguments that the safe custody and transmission has also been proved by the prosecution beyond any shadow of doubt, which does not in any manner create doubt in the case, thus requested for dismissal of the appeal.
4. Heard. Record vetted cover to cover with the able assistance of learned counsel for
the parties.
5. Complainant Abdul Qadir RL (PW -1) testified that during patrol duty on 07.11.2023
at about 4:30 pm, a 2D a car bearing Registration No. AAN -223 driven by appellant No.1,
whereas appellant No.2 was seating on the passenger seat coming from Quetta towards Karachi was stopped and checked, wherein ten (10) packets of 'charas', weighing 10 kgs concealed in the cavities made in the switchboard of the said vehicle were recovered. According to him, on personal search of appellant No.1, recovered a CNIC, Vivo mobile
phone, documents of car, watch and a ring, whereas from appellant No.2 recovered Oppo
mobile and a watch. Complainant Abdul Qadir RL (PW -1) neither in his murasila (Ex.P/1- A)
nor in his statement before the court stated that after the recovery to whom he had handed
over the recovered contraband. He also did not state that when did investigation officer
("IO") Shahid Aslam RL (PW -6) came on the place of occurrence. Complainant Abdul Qadir
RL (PW -1) in his examination- in-chief neither did he state that how and in what manner the
narcotics were recovered from the switchboard nor did he mention that how the contraband was weighed. He also did not testify and reveal regarding shape and kind of narcotics. His statement is also absolutely silent regarding extracting of samples. The testimony of recovery witness Naseebullah Levies Constable ("LC") (PW- 2) is not in line with the deposition of
complainant (PW- 1). He testified that ten (10) packets of 'charas' were recovered from secret
cavities of AC fitted in the switchboard, but complainant Abdul Qadir RL (PW -1) did not
mention so. He produced recovery memos of narcotics, car and other belonging of appellants as (Ex.P/2 -A), (Ex.P/2 -B) and (Ex.P/2- C) and produced the same as Art.P/2- 1 to Art.P/2 -7.
During cross -examination, he admitted that no separate cavity is made in the recovered car
and that 5- 5 packets were recovered from each side. He in examination -in-chief stated that
the colour of the recovered car was blue, whereas complainant Abdul Qadir RL (PW -1) in his
murasila (Ex.P/1 -A) and FIR (Ex.P/6 -A) has mentioned the colour of said car as golden. In
view of the above, the statements of both the above witnesses have been found to be contradictory, creating doubt in the recovery.
6. In order to substantiate the safe custody and transmission of the narcotics, the
prosecution produced Muhammad Younas in- charge malkhana (PW -4). He testified that on
07.11.2023, Shahid Aslam IO (PW -6) handed over him parcels Nos.1 to 12, whereof he made
entry in Register No.19 at serial No.68 and thereafter handed over back parcels Nos.1 to 10 to Muhammad Tayyab (PW -5) for onward transmission to Director Laboratories and
Chemical Examiner to the Government of Sindh, Karachi ("FSL, Karachi") for chemical analysis. He produced copy of relevant page of Register No.19 as (Ex.P/4- A). Muhammad
Younas (PW -4) in his examination- in-chief did not mention about the date and time, when he
handed over the said parcels to Muhammad Tayyab (PW -5) for onward transmission to FSL,
Karachi. Shahid Aslam IO (PW -6) produced FSL, Karachi report (Ex.P/6- D). IO (PW -6) in
his examination -in-chief stated that parcel Nos.1 to 12 were handed over to Muhammad
Tayyab LC (PW -5) for onward transmission to FSL, Karachi, contradicting malkhana in -
charge Muhammad Younas (PW- 4), Muhammad Tayyab LC (PW -5) and FSL, Karachi report
(Ex.P/6 -D), wherein it is clearly mentioned that parcel Nos.1 to 10 were deposited in the
office of FSL, Karachi. Furthermore, record reflects that the recovery was effected on 07.11.2023, but the office of FSL, Karachi received the parcels on 10.11.2023, whereof no plausible explanation has been offered by any of the prosecution witnesses, which makes process of safe custody and transmission of the narcotics from the pl ace of recovery to the
malkhana and then its onward transmission to FSL, Karachi cloudy. In this regard, we are
fortified with the view expounded in the cases titled as "The State v. Imam Bakhsh" (2018 SCMR 2039) and "Kamran Shah v. The State" (2019 SCMR 1217). For ease of reference, the relevant para No.9 of Imam Bakhsh's case supra is reproduce herein below;
"9. We have noted above that in Criminal Appeals Nos. 523 to 525/2017 and No.22/2018, safe custody and safe transmission of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representatives sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory. This chain of custody, is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that he chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction. This Court has already held in Amjad Ali v. The State (2012 SCMR 577) and Ikramullah v. The State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established, the report of the Government Analyst becomes doubtful and unreliable."
[Emphasize added]
7. So be it, the FSL, Karachi report (Ex.P/6- D) is also inconclusive, which cannot be
taken into consideration for conviction and awarding sentence as it offends the mandatory provisions of Rule 6 of the Control of Substances (Government Analyst) Rules 2001 ("Rules of 2001"). The apex court in the case of "Khairul Bashar v. State" (2019 SCMR 930) and Imam Bakhsh's case supra, while elucidating the word "protocol" observed that it means an explicit, detail plan of an experiment, procedure or test or a process step by step description of a test, including the list of all necessary reagents and all criteria and procedure for the evaluation of the test data and "Full Protocols" include description of each and every step employed by the Government Analyst through the course of conducting a test.
Similarly, the Supreme Court in the case of "Qaiser Javed Khan v. The State" (PLD
2020 SC 57) reiterated the dictum ibid and elaborated that to serve the purpose of the Act and the Rules framed thereunder, the report of the Government Analyst must contain i) the test applied. ii) the protocols applied to carry out these tests and iii) the result of the test(s).
8. According to the United Nations International Drug Control Programme's guidelines,
the 'presumptive' and 'confirmative' tests serve distinct purposes and are foundational to the legal determination of narcotic substances, the definitions whereof reads as under;
"a. Presumptive Tests.
Presumptive tests are generally the first step in the analysis process. These tests are typically screening methods designed to quickly identify whether a sample contains substances that might be narcotics. They include immunoassay techniques such as:
1. Radioimmunoassay (RIA)
2. Enzyme immunoassay (EIA)
3. Fluorescence Polarization Immunoassay (FPIA)
4. Latex Agglutination Inhibition (LAI)
These tests help eliminate negative samples early in the process and identify samples requiring further examination. However, due to the potential for crossreactivity, presumptive tests are not sufficient on their own for legal proceedings
b. Confirmatory Tests.
Confirmatory tests provide the higher specificity and accuracy required for legal proceedings. The recommended confirmatory methods are typically chromatographic techniques, such as:
1. Gas Chromatography (GC)
2. High- Performance Liquid Chromatography (HPLC)
3. Gas Chromatography -Mass Spectrometry (GC/MS)"
9. Bare reading of the tests ibid and guidelines of the United Nations Office on Drugs
and Crimes ("UNODC") manifests that the presumptive and confirmatory tests serve a
critical role in ensuring the validity of the government analyst's report. The presumptive test acts as an initial filter, while the confirmatory test provides the conclusive evidence necessary to meet legal thresholds for conviction. These protocols aim to ensure accuracy by conducting two stages of testing due to which the likelihood of false positives or negatives is minimized.
10. In the instant case, the report of chemical examiner FSL, Karachi (Ex.P/6 -D) reveals
that two tests were performed by the FSL, Karachi i.e., Fast Blue B Salt Test and Thin Layer Chromatograph ("TLC") Test. The FSL, Karachi has albeit rightly considered the Fast Blue B Salt Test as presumptive test, but has wrongly construed the TLC as a confirmative test, which is in contravention of UNODC guidelines and recommendations. As per UNODC Manual i.e., Recommended Method for Identification and Analysis of Synthetic Cathinones in Seized Materials, 2015 (clause 4.6) TLC is mere presumptive test. The relevant clause 4.6 is as infra;
"4.6 Thin Layer Chromatography (TLC)
TLC is a common used technique for the separation and identification of illicitly used drugs. It is inexpensive, rapid, sensitive and flexible in the selection of both the stationary and mobile phase and amendable to a wide variety of substances, in base
and sale form, ranging from the most polar to non- polar materials. A retention factor
(Rf) can be calculated for each compound within a sample to provide a tentative discrimination of compounds within a drug class.
Distance from origin to sample spot Rf Value = --------
Distance from origin to solvent front
TLC is frequently used in the analysis of illicitly used drugs, as it is cheap, easy to use, gives a certain degree of specificity and is capable of simultaneous drug detection. As with presumptive test, however, TLC is not considered a confirmatory test and is only
used as a screening method. In 1990, Lehmann et al. [35] proposed a method to identify cathinone from that and this was corroborated by Lee in 1995 [36]."
11. The apex court in Imam Bakhsh's case supra strictly directed the Federal Government
and the respected Provincial Governments to ensure that the Government Analyst in the Narcotics Testing Laboratories are qualified as per Rule 3 of the Rules of 2001, who shall follow the protocols of tests as per international guidelines and in case of failure, disciplinary action be taken against the said officials. The respective para No.19 for ease of reference is as infra.
"19. Efficient, credible and proficient Narcotics Testing Laboratories are integral for successful execution of the Act and the Rules. The said laboratories have to be manned by competent analysts having prescribed qualifications. Rule 3 provides for the qualifications of a Government Analyst and it has already been held to be a mandatory provision by this Court. Further, the obligations of the Government Analysts under these Rules must be complied with for ensuring accurate and meaningful chemical analysi s. In order to standardize the Narcotics Testing
Laboratories across the country, the protocols and tests applied by these laboratories must meet common international standards, e.g. Guidelines issued by the United Nations Office on Drugs and Crime (UNODC) or Scientific Working Group for the Analysis of Seized Drugs (SWGDRUG) or the International Organization for
Standardization (ISO) - 17025:2017. We, therefore, direct the Federal Government
and the respective Provincial Governments to ensure that the Gove rnment Analysts
in the Narcotics Testing Laboratories are qualified as per Rule 3, the tests and their
protocols are common across the country are as per International guidelines. The
officials of the National and Provincial Narcotics Testing Laboratories shall follow
the Rules in the best manner possible so that efficient and meaningful chemical analysis can be achieved. In case of failure, disciplinary action be taken against the officials, in accordance with law."
12. Admittedly, not only Fast Blue B Salt is a presumptive test, but the TLC is also
presumptive test, but FSL, Karachi has wrongly considered it as a confirmatory test, which is in utter violation of the UNODC Manual and the dicta laid down by the apex court in Imam Bakhsh's case supra, thus no conviction can be recorded, while relying upon such FSL report.
13. It is now well settled principle of law that harsher the punishment, stronger the
evidence for establishing the indictment, which seems to be lacking in the instant case. The Supreme Court in the case of "Ahmed Ali v. The State" (2023 SCMR 781) held that a single or a slightest doubt, if found reasonable would be sufficient to entitle the accused of its benefit, not as a matter of grace and concession, but as a matter of right.
14. In view of the appraisal of evidence made herein above, we have irresistibly reached
to a conclusion that due to the discrepancies highlighted hereinabove, the case of the
prosecution has become highly doubtful, thus, we are unable to maintain the conviction and
sentence rendered though the impugned judgment.
15. Corollary, the appeal is allowed and consequently, the impugned judgment of the
Trial Court dated 21.05.2024 is set -aside and the appellants are acquitted of the charge, who
be released forthwith, if not incarcerated in any other case.
16. Office to transmit copy of this judgment to the Member Inspection Team of this
Court, Advocate General Balochistan, Prosecutor General Balochistan, Inspector General of
Police, Balochistan, Director General ANF, Balochistan, Federal and Provincial Testing
Laboratories for information and compliance of this judgment in view of the protocols and
guidelines enumerated by the UNODC and dictum expounded by the Supreme Court of
Pakistan in Imam Bakhsh's case supra, which by all means be strictly complied with in letter and spirit and in case of non- compliance from this date onwards, strict departmental action
be taken against the concerned officials of Federal and Provincial Testing Laboratories.
JK/140/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.